Kucinich v. Texas Democratic Party, 032409 FED5, 08-50038

Docket Nº:08-50038
Party Name:DENNIS J KUCINICH; KUCINICH FOR PRESIDENT 2008, INC.; WILLIE NELSON, Plaintiffs-Appellants v. TEXAS DEMOCRATIC PARTY; PHIL WILSON, Individually and in his official capacity as Secretary of State; BOYD L RICHIE, Defendants-Appellees
Case Date:March 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit



TEXAS DEMOCRATIC PARTY; PHIL WILSON, Individually and in his official capacity as Secretary of State; BOYD L RICHIE, Defendants-Appellees

No. 08-50038

United States Court of Appeals, Fifth Circuit

March 24, 2009

Appeal from the United States District Court for the Western District of Texas

Before JONES, Chief Judge, and OWEN and SOUTHWICK, Circuit Judges.

EDITH H. JONES, Chief Judge:

This appeal addresses the constitutionality of a Texas Democratic Party rule that requires prospective presidential candidates to swear that they will "fully support" the party's presidential nominee, "whoever that shall be," in order to qualify for the primary ballot. Former candidate Dennis Kucinich ("Kucinich") and his supporters urge that the oath is unconstitutionally vague and unduly burdens their respective rights to qualify for the ballot and vote for him as a candidate. The Texas Democratic Party ("TDP") defends its loyalty oath as a means to protect the associational rights of its members. Like the district court, we find no constitutional infirmity in the oath and affirm its judgment. That we find the oath permissible does not, of course, suggest that it is prudent.


The relevant facts are stipulated and simple. On December 28, 2007, Dennis Kucinich, a candidate for President, submitted an application to TDP to be placed on the March 4, 2008, primary ballot. Under Texas law, subject to minimal restraints, political parties are exclusively permitted to adopt rules that govern the placement of their candidates on the presidential primary ballot. See Tex. Elec. C ode § 191.002. The Rules of the Texas Democratic Party, which are adopted at the state convention every two years, require each presidential candidate to execute a party loyalty oath. On his signed ballot application, however, Kucinich crossed out the portion of the oath that required him to "swear that I will fully support the Democratic nominee for President whoever that shall be." On January 2, 2008, TDP informed Kucinich that his candidacy would not be certified to the Texas Secretary of State for the presidential primary ballot unless he re-signed the application with the full oath. Kucinich responded that he would only support a nominee who would not employ war as an instrument of foreign policy.

Kucinich, Kucinich for President, Inc., and Willie Nelson immediately filed suit in the district court seeking to temporarily and permanently enjoin TDP from enforcing the oath on the grounds that the oath violated their First and Fourteenth Amendment rights. They asked the court to order the TDP Chairman to certify Kucinich as a candidate and order the Secretary of State to place Kucinich's name on the primary ballot. The district court held a bench trial on January 11 and denied the request for a permanent injunction. Between January 15–18, 2008, the district court, this court, and the Supreme Court denied Kucinich's emergency motion for injunction pending appeal. Kucinich's name was not placed on the ballot.

Now on appeal, Kucinich asks this court to reverse the district court and hold the oath unconstitutional.


Although the appeal technically arises from the denial of injunctive relief, we need not consider the equitable criteria for awarding an injunction unless we first conclude that a constitutional violation has occurred. After a preliminary detour concerning the potential mootness of the case, we turn to the constitutional issues. Review of these purely legal issues is de novo.


Article III of the Constitution requires that "[t]he requisite personal interest that must exist at the commencement of the litigation [] must continue throughout its existence." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209 (1980). In general, "any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot." Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006). TDP contends that Kucinich's claim is moot because the 2008 primary election has occurred and "no order of the court can affect the rights of the parties with regard to the requested relief." Many claims that implicate election laws, however, fall within an exception to the mootness doctrine for "the class of controversies 'capable of repetition, yet evading review.'" First Nat'l Bank v. Bellotti, 435 U.S. 765, 774, 98 S.Ct. 1407, 1414 (1978) (quoting S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). There are two criteria for this exception: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349 (1975).

A reasonable argument can be made that Kucinich at least failed to satisfy the second prong, but we do not find this case moot given the current state of guidance from the Supreme Court. The first prong of the capable-of-repetition test can be said to have been satisfied by the short time frame between Kucinich's declaration of candidacy and the rejection of his place on the ballot.1As to the second prong, the Court noted in recent election cases that each particular plaintiff had specifically alleged a likelihood that he would again be adversely affected by the challenged law. See, e.g., Davis v. FEC, 128 S.Ct. 2759, 2770 (2008) (holding that the claim was not moot because the plaintiff expressed his intention to run for office in the next election); FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 127 S.Ct. 2652, 2663 (2007) (finding justiciability where "WRTL credibly claimed that it planned on running materially similar future targeted broadcast ads" that would be subject to the same statutory prohibition and where WRTL had sought an injunction that would permit such an ad during the next election cycle). The Court has not, however, dismissed an election case as moot where the plaintiff failed to allege that he would be governed by the same flawed law in the next election. See Anderson v. Celebrezze, 460 U.S. 780, 785 n.3, 103 S.Ct. 1564, 1567 n.3 (1983); Storer v. Brown, 415 U.S. 724, 737 n.8, 94 S.Ct. 1274, 1282 n.8 (1974); Rosario v. Rockefeller, 410 U.S. 752, 756 n.5, 93 S.Ct. 1245, 1249 n.5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n.2, 92 S.Ct. 995, 998 n.2 (1972). This consistent line of rulings led Justice Scalia to observe that the Court's treatment of election law cases differs from its traditional mootness jurisprudence by dispensing with the same-party requirement and "focusing instead upon the great likelihood that the issue will recur between the defendant and the other members of the public at large." Honig v. Doe, 484 U.S. 305, 335-36, 108 S.Ct. 592, 611 (1988) (Scalia, J., dissenting).

Thus, although Kucinich's counsel, when pressed at oral argument, could not state whether his client has an intention to run for President in the future and declined to express a belief that Kucinich will again be subject to the party's oath requirement, we are unwilling to dismiss the case as moot when "the issues properly presented, and their effects [], will persist as the [restrictions] are applied in future elections." Storer at 737 n.8; but cf. Smith v. Winter, 782 F.2d 508, 510 (5th Cir. 1986) (election law challenge held moot because elected officials prevailed in recall election at ballot box).


As a threshold matter, Appellants contend that the oath is unconstitutionally vague. If the oath passes this test, they next contend that denying ballot access to a candidate who refuses to sign TDP's oath is a "clear-cut violation" of Kucinich's rights of association, free speech, and equal protection.2 Interrelated though these arguments may be, we take them in turn.

First, given its scope, purpose and effect, the oath...

To continue reading